New York’s chief judges like to leave their mark on the system before they leave the job. Sol Wachtler’s mark was to distinguish New York’s greater respect for constitutional rights despite the Supreme Court’s watering down of federal constitutional rights. Judy Kaye was all about making jurors feel more comfortable about the burden, including eliminating exceptions for all the people who would love to be on a jury, but rarely get picked.
Jonathan Lippman ages out in December, and has chosen his cause: to end the bail disaster that leaves the poor in jail for lack of a thousand dollars, particularly when there is no good reason to hold them in the first place. It’s a worthy cause, even if it could have been accomplished swiftly under New York’s existing law. Doesn’t anybody actually read the law anymore? Anybody?
First, he will appoint a senior judge in each New York City borough to review every misdemeanor case in which a defendant fails to pay bail. The review would take place within 10 days of arraignment to determine if bail should be reduced.
Lest we leap over the first step in fixing bail, a judge does it at arraignment, which occurs about 24 hours after arrest. Not some prosecutor, or cop. Not some bureaucrat or prison official. A judge. In New York City, it’s a criminal court judge. In Long Island, it’s a district court judge. Elsewhere, it’s some other judge of some other flavor, but they’re all judges. They are all under the auspices of the Chief Judge. That, so you know, would be Lippman. Jonathan Lippman.
The initial fixing of bail is where it all falls into the toilet. A kid prosecutor (the rookies get saddled with arraignments and work off of forms provided them by more experienced prosecutors in ECAB, the early case assessment bureau, who aren’t in court) asks for bail. The kid can’t explain why the write-up says bail is needed, and proffers the same old, tired, ridiculous reasons that have little to do with the defendant. It’s impossible to argue the point with someone who has no real clue. Judges get this and give the kids a pass. After all, they’re doing God’s work.
But what will a judge be able to do “reviewing” the bail determination 10 days later? The process is unclear, whether it means an appearance, a submission, or just blind review, though Judge Lippman suggests that it will overcome the assembly line of arraignment bail determinations. How one judge reviewing potentially thousands of decisions will be leisurely and thorough isn’t explained. How the system will accomplish this new administrative burden without taxing a system already far too short on judges isn’t explained.
But mostly, even assuming the systemic issues aren’t absurdly optimistic, the defendant has already spent ten days in jail. That’s far less than the usual year, but more than enough to lose a job, house, a spouse or custody. Plus, get a good tune-up on the rock. Why abandon all hope of judges actually doing their job like big boys and girls at arraignment?
Second, he is ordering periodic reviews for people in custody awaiting trial on felony charges so that a trial takes place quickly or the bail is reduced.
We already have that opportunity. Defense counsel can seek review of bail any damn time she wants. And judges can blow it off, just as they do now. Denied. Move along, counselor.
Third, as under a pilot program in Manhattan Criminal Court, Judge Lippman will allow judges to release some defendants charged with misdemeanors to be monitored electronically. In most cases, defendants will wear a bracelet linked to a cellphone.
Putting aside why they need to be monitored at all, and who’s going to pay for monitoring, a not inexpensive proposition, this adds another level of admin problems for which the system isn’t prepared. It also raises the same old, tired questions of why someone presumed innocent can’t be allowed to do as he pleases provided he appears in court as required.
What is he being “monitored” for? He can’t go out for dinner? He can’t go to work? He can’t pick his kids up from school? If he was out on bail, he could. Nowhere does New York law say pretrial defendants aren’t entitled to live like the presumptively innocent human beings they are.
Finally, the judge is asking state and city judges to offer defendants less onerous alternatives to putting up cash or using bail bond salesmen who charge fees. Under New York State law, a judge can require only a “partially secured bail bond” that allows a down payment to the court with a credit card.
Rarely has the cliché, “last but not least,” been more true. New York has great bail laws, providing a wealth of options that would enable this “epidemic” to be cured immediately. If only judges used them. They don’t. It’s as if the law never existed, and the options provided were written in some mystery language that no judge can read.
1. The only authorized forms of bail are the following: (a) Cash bail. (b) An insurance company bail bond. (c) A secured surety bond. (d) A secured appearance bond. (e) A partially secured surety bond. (f) A partially secured appearance bond. (g) An unsecured surety bond. (h) An unsecured appearance bond.
Or defendants can be ROR’d, released on their own recognizance. It’s all there. And completely ignored.
But there is an inherent lie built into all of this, which never seems to make it onto anyone’s radar. Essentially, every discussion of bail includes the lie that it’s about protecting the public, keeping the “dangerous” criminals from raping you in your bed in the middle of the night.
Like other reformers, Judge Lippman wants to keep the dangerous criminals in jail and lock up those who might try to skip town.
Neither the editors of the New York Times, nor pretty much any other non-lawyer pundit has a clue what they’re talking about. Their ignorance creates and perpetuates your ignorance, because they persist in presenting this myth and it’s so deep in people’s heads that nobody questions what the law really is.
When a principal, whose future court attendance at a criminal action or proceeding is or may be required, initially comes under the control of a court, such court must, by a securing order, either release him on his own recognizance, fix bail or commit him to the custody of the sheriff.
That’s right. The only basis for bail in New York is to require a defendant to return to court. The “dangerousness” of a presumptively innocent person should not play any role whatsoever, because the law says so. If anything, this reform adds another stumbling block that doesn’t exist in the law. Dangerousness is not a consideration for bail. It’s the law, dammit. Doesn’t anyone read the law anymore?
So Chief Judge Lippman, rather than come up with another administrative Rube Goldberg machine, why not require those over whom you wield authority as the big kahuna to just apply the law that judges have ignored all along? We already have great law. The truth is that judges refuse to use it, and they have refused all along. There is nothing more dangerous to criminal law than judges who refuse to do their job.